Israeli Supreme Court approves regulations that ban Palestinians from Gaza from entering Israel for compensation cases against the Israeli military

17/12/2014

Regulations openly specified that AG should look into possibility of facilitating the pursuit of legal cases only if it did not harm the state’s position in the case.

On 16 December 2014, the Supreme Court of Israel rejected a petition submitted by human rights organizations against Israel’s policy of preventing residents of Gaza who have submitted compensation lawsuits for damages against the Israeli military, and their witnesses, from entering Israel to attend their own court hearings.

Adalah filed the petition in 2012 in cooperation with the Al Mezan Center for Human Rights, the Palestinian Center for Human Rights, and Physicians for Human Rights – Israel on behalf of four individuals from Gaza who filed tort lawsuits against the Israeli military for killings, injuries and extensive property damages and whose requests for permission to enter Israel to pursue their cases were repeatedly denied. Former Adalah Attorney Fatmeh El-'Ajou filed the case. Adalah General Director Attorney Hassan Jabareen and Adalah Attorney Sawsan Zaher represented the petitioners before the Supreme Court.

Although the Court rejected the petition, in the judgment pointed out the conflict of interests created by this policy between the state's position as the defendant before the court and as the authority that determines who can and who cannot enter Israel to access the court. Justice Elyakim Rubinstein stated in the decision that the state simultaneously wears two hats, as the party “responsible for security on the one hand, and as the defendant on the other,” and that “it must take care as far as possible not to confuse the two issues.”

After the petition was filed, the Attorney General (AG) proposed new procedures before the Supreme Court for “examining requests to enter by Palestinian residents of Gaza for the purpose of pursuing judicial proceedings in Israel.” These regulations openly and absurdly specified that the AG should look into the possibility of facilitating the pursuit of legal cases only provided that it does not harm the state’s position in the case.

In response to the petitioners’ argument that these regulations resulted in clear conflict of interests, the justices stated in their final judgment that, “We do not deny that we have criticisms regarding this section [of the regulations]… but the question goes back to the two hats that the state wears in this case, as we have stated above.”

In its decision, the court did not address the grave violation of the constitutional rights of the complainants and of their rights to compensation for damages incurred by them resulting from the state’s policy of closure. Justice Rubinstein stated that the case should not be viewed, “from a constitutional perspective, but a practical perspective…” adding that the filing and pursuit of lawsuits must not “harm security.”

Although the court criticized the new regulations, it is nonetheless asking the complainants to abide by them. The fact is that the AG did not provide one example of an individual who obtained a permit to enter Israel under these regulations. The court’s judgment effectively denies Gaza residents the possibility of accessing courts in Israel, and it endorses a set of illegal regulations that violate the complainants’ constitutional rights. The regulations further prevent lawyers who are citizens of Israel from holding meetings with their clients from the Gaza Strip to pursue these cases. The lack of an effective means of accessing the Israel courts will lead to the dismissal of these tort lawsuits on the grounds that the complainant or his/her eyewitnesses failed to attend court hearings.

Responding to the decision, Adalah’s General Director Attorney Hassan Jabareen stated that, “The court’s decision is fundamentally at odds with international humanitarian law, which clearly and definitely establishes the right of victims, who live under Occupation, to submit claims for damages to the courts of the occupying power, and stipulates that the legal proceedings available to them should be effective and just. The decision also contradicts claims made by the Israeli Foreign Ministry before the courts of European states that Palestinians have the opportunity to submit lawsuits to the Israeli courts and that there is therefore no need for foreign courts to decide on this matter.”

Raji Sourani, the Director of the Palestinian Center for Human Rights stated in response to the decision: "After a series of administrative and legislative measures, which concluded with Amendment No 8 of the Tort Law, this Supreme Court decision provides clear cut evidence of total injustice for Palestinian victims of Israeli war crimes. It declares boldly and unequivocally from the highest judicial level that the system is boycotting the victims, and not vice versa. With this decision, the court shamefully states that Palestinians have no other choice to achieve justice and dignity but through international justice mechanisms."

Issam Younis, the Director of the Al Mezan Center for Human Rights in Gaza emphasized in response to the Court's judgment: "Yet again, the Israeli justice system is dealing with politics rather than justice, and denies victims of serious violations of international law any chance to seek redress. The dozens of victims of such violations in Gaza get a clear message from the Israeli Supreme Court: no matter what you suffer, there is no chance to expect justice in the Israeli court system. Unless the international community intervenes to protect this assault on international law, we can only expect the worst.”